Readers of the blog know that the CAR FRESHNER people, owners of the mark consisting of the product configuration of a tree-shaped air freshener,  know where the court is located, having sued various third parties selling tree-shaped fresheners.  It has now sued Getty Images, owners of one of the larger stock photo agencies.  Getty maintained at least 11 images in its inventory that depicted a tree-shaped air freshener.  Car Freshner sued on multiple counts, including trademark infringement.  Getty moved to dismiss the trademark count, arguing that it was not using the mark as a trademark, and if it was, such use was either nominative or descriptive fair use.

The interesting part of the discussion begins in the NDNY decision below on page 11.  The Court held that plaintiff plausibly alleged that photos that depict the freshener (of which the one above is attached to the complaint as illustrative exhibit) are arguably trademark use of the freshener, and may possibly not be either nominative or descriptive fair use.   I note that the 11 photos attached to the complaint vary in their treatment of the fresheners, as some ‘incidentally’ depict the freshener within a photo as above, while others could be deemed to be ‘beauty shots’ depicting the freshener alone.

Given that Getty has 80 million images, it may have some agita that its fair use defense did not defeat a 12(b)(6) motion, given that perhaps some others of its 80 million photos that may depict recognizable trademarks as well.  Some may not be sad about that.

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